[2022] KEELRC 13225 (KLR)
The court held that it was functus officio upon delivery of its judgment on 15 June 2022, and therefore lacked jurisdiction to entertain the applicant's motion for injunctive relief. The court further found that the issue of the bank loan interest rate was not pleaded in the original claim, which was limited to...
Source-derived case information.
- Citation
- [2022] KEELRC 13225 (KLR)
- Parties
- Applicant: Tabitha Sarah Atieno Ogolla; Respondent: National Bank Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause E020 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Motion for Injunctive Relief Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- S Radido
- Legal Topics
- Functus Officio, Injunctive Relief, Stay of Execution, Unfair Termination, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Sarah Atieno Ogolla
Applicant
National Bank Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Motion for Injunctive Relief Pending Appeal
Legal Issues
- 1 Whether the court has jurisdiction to grant injunctive orders after delivering a final judgment and becoming functus officio.
- 2 Whether the applicant is entitled to orders restraining the respondent from increasing the bank loan interest rate pending appeal.
- 3 Whether the application is properly before the court given the nature of the original claim and the reliefs sought.
Ratio Decidendi
The court held that it was functus officio upon delivery of its judgment on 15 June 2022, and therefore lacked jurisdiction to entertain the applicant's motion for injunctive relief. The court further found that the issue of the bank loan interest rate was not pleaded in the original claim, which was limited to unfair termination of employment. As such, the orders sought in the motion were not anchored in any pending cause before the court. Additionally, since the judgment was a dismissal (a negative order), there was nothing capable of being stayed or injuncted. The application was thus dismissed as being without merit and an abuse of the court process.
Court Disposition
application dismissed with costs
Orders
- The Motion is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
31 paragraphs
Ogolla v National Bank Ltd (Cause E020 of 2021) [2022] KEELRC 13225 (KLR) (16 November 2022) (Ruling)
Neutral citation: [2022] KEELRC 13225 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause E020 of 2021
S Radido, J
November 16, 2022
Between
Tabitha Sarah Atieno Ogolla
Claimant
and
National Bank Ltd
Respondent
Ruling
1. In a judgment delivered on 15 June 2022, the Court found no merit in the Cause and dismissed it with costs.
2. Tabitha Sarah Atieno Ogolla (the applicant) was dissatisfied, and she lodged a Notice of Appeal on 23 June 2022.
3. On 28 July 2022, the applicant filed a Motion seeking orders:(1)…(2)…(3)This Honourable Court be pleased to grant orders restraining the Respondent from unlawfully increasing the applicant's bank loan interest rate from 4. 5% per annum to 14% per annum pending the hearing and determination of the intended appeal.(4)The costs of this application be provided for.
4. When served, the National Bank Ltd (the Respondent) filed a Notice of Preliminary Objection contending that:The Notice of Motion is misconceived and unfounded in law, fatally defective, a blatant abuse of the process of this Honourable Court and does not lie in law and is therefore for dismissal in limine with costs, given the clear and undisputed facts and circumstances of this matter.
5. On 29 September 2022, the Court directed the parties to file and exchange submissions.
6. The applicant filed her submissions on 30 September 2022, and the Respondent on 13 October 2022.
7. The applicant urged the Court to grant the orders sought because she had preferred an appeal to the Court of Appeal, and the appeal was arguable and would thus be rendered nugatory if the Court did not intervene.
8. The Respondent, however, contended that since there were no orders capable of being stayed, the instant application was an abuse of the court process.
9. It was also submitted that the Court was functus officio.
10. The Court has considered the Motion, affidavit in support, the Objection and submissions and concludes that the Motion is without merit for the following reasons.
11. One, the Court became functus officio upon the delivery of judgment on 15 June 2022.
12. Two, the question of interest rate or contract upon which the Respondent advanced the loan to the applicant was not pleaded in the Statement of Claim. In other words, the case pleaded by the applicant was with respect to unfair termination of employment.
13. Three, the Motion and orders sought are made in vacuo as there is no pending cause before the Court for determination.
14. Lastly, the judgment delivered by the Court dismissed the applicant’s case, and thus, a negative order was issued.
15. The Court cannot now rewind the legal wheels (of justice) and grant injunctive orders.
Conclusion and Orders 16. The Motion is dismissed with costs to the Respondent.
DELIVERED VIRTUALLY FROM LAMU, DATED, AND SIGNED ON THIS 16TH DAY OF NOVEMBER 2022. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor Applicant Bruce Odeny & Co. AdvocatesFor Respondent Ochieng Ochieng AdvocatesCourt Assistant Chrispo Aura